The much-awaited ordinance, expected to make a tangible impact on India’s crisis of piling non-performing loans, was signed into a law by the President on 5th May 2017. The Ordinance, consisting of barely two sections, makes amendments to the regulatory framework of banking in India, viz., the Banking Regulation Act. After reading the law, one is forced to think – if this is what was holding up the resolution of NPA crisis in the country, did it actually have to take all this time?
Can an Application for resolution process of a company be filed under IBC, 2016 in case a winding up Petition is pending before a High Court?
MCA Notification on transition for pending proceedings
MCA notification for Companies (Transfer of Pending Proceedings) Rules, 2016 only provides for the transition of the litigation process from High Court to the NCLT. This Rule lays down the criteria for deciding whether the matter will be filed with and adjudged by NCLT or by High Court.
As per the Rule 5 of the said Rules, where the Petition for winding up has been served on the Respondent Company and is pending before the respective High Court, such Petition shall be adjudged by the High Court.
When a matter is being adjudged by the High Court under Act, 1956, the same will be governed by the provisions of the erstwhile Act, 1956.
The Insolvency and Bankruptcy Code, 2016 (“the Code”) enables a financial creditor and an operational creditor to initiate insolvency proceedings against a corporate debtor. While in case of a financial creditor, the creditor may initiate a case without serving “demand notice” on the corporate debtor; an operational creditor, before taking action under section 9, shall first serve a demand notice on the corporate debtor. If in response, the corporate debtor intimates existence of a “dispute”, the operational creditor cannot proceed under section 9. Therefore, “dispute” becomes a crucial word as it decides whether an operational creditor has a “cause of action” against the corporate debtor.
In the recent past, the financial sector has witnessed an alarming rise in the number of stressed assets. Undoubtedly, the ability of the lender to deal with stressed assets has been time and again tested. Nevertheless, there is existence of informal as well as formal framework to deal with default on the part of the borrower company. For instance, the informal regulatory framework of the country provides various avenues to the lenders for the purpose of revitalising Read more
The Insolvency and Bankruptcy Board of India, vide Notification No. IBBI/2016-17/GN/REG010 dated March 31, 2017 has issued the Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017 (“the VL Regulations”) pursuant to section 59 of the Insolvency and Bankruptcy Code, 2016 (“the Code”) and has appointed April 1, 2017 as the date on which the VL Regulations shall come into force.
The Ministry of Corporate Affairs vide Notification No. S.O. 1005(E) dated March 30, 2017 has notified April 1, 2017 as the date on which the following sections of the Code came into force: Read more
Steps of Voluntary liquidation of Corporate Person as per Insolvency and Bankruptcy Code, 2016(‘Code’) and Insolvency and Bankruptcy Board of India ( Voluntary Liquidation) Regulations, 2017 (‘liquidation Regulation’)
With the commencement of the Insolvency and Bankruptcy Code, 2016(the ‘Code’) vide notification dated May 28, 2016, scope w.r.t resolution pertaining to Insolvency Proceedings has been immensely increased. The stakeholders have progressively begun availing the remedies under the Code and numerous applications have been filed across different Benches of NCLT for redressal.
In the recent case of Nikhil Mehta and Sons (HUF) V M/s AMR Infrastructures Ltd, the Principal Bench of the National Company Law Tribunal (‘NCLT’) – New Delhi, after deliberating at stretch has interpreted the scope of the stipulations i.e. Financial Creditor and Financial Debt as defined under Section 5 of the Code.
Brief facts of the case
Mr. Nikhil Mehta HUF along with others (herein after referred to as ‘Applicant’) has entered into Memorandum of Understanding (‘MOU’) with M/s AMR Infrastructure Limited (herein after referred to as ‘Respondent’) which is engaged in the real estate development of commercial and residential properties. The MOU was entered on different dates with respect to booking of two commercial and one residential property, for which substantial payments have been made on execution of MOU, possession of which were to be handed over by the Respondent as per the terms agreed in MOU. As per the terms of MOU, a stipulated fixed amount i.e. ‘Assured Return’ was agreed to be paid on monthly basis by the Respondent to Applicant in respect of all the three properties, till the respective dates of delivering of possession of the booked properties.
Respondent erratically made the payments to Applicant for a certain period and then defaulted in the payment of Assured Return. Applicant issued three legal notices for the demand of Assured Return, due and payable as per terms of signed MOU. Further, none of the projects of the Applicant has been completed by offering possession.
It is also alleged that many other, like Applicants, have been duped to invest their hard earned money in the projects of the Respondent out of which many of them have already initiated the winding up proceedings against the Respondent which are pending in the Hon’ble High Court of Delhi.
Relief sought by the Applicants
The default in the payment of Assured Return, is asserted before the Tribunal as a ground for triggering the Insolvency process by invoking Section 7 of the Code, read with Rule 4 and Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.
It is asserted before the Tribunal that the aforesaid amount i.e. “Assured Return” is an admitted debt by the Respondent and the default in payment of such debt would be sufficient to satisfy the requirement of Section 7 read with Section 5(7) and (8) of the Code i.e. would be covered by the expression Financial Creditor and Financial Debt for the application to be filed under Section 7 of the Code.
Provisions of the Law
Section 5(7) of the Code defines Financial Creditor to mean:
any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to.
Further Section 5(8) of the Code defines Financial Debt to mean:
a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes—
- money borrowed against the payment of interest;
- any amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent;
- any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
- the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed;
- receivables sold or discounted other than any receivables sold on nonrecourse basis;
- any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing;
- any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account;
- any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution;
- the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause;
Section 7 of the Code deals with the process of the initiation of Corporate Insolvency Resolution process in case application is filed by the Financial Creditor and read as follows:
(1) A financial creditor either by itself or jointly with other financial creditors may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred.
Explanation.—for the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor.
(2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed.
(3) The financial creditor shall, along with the application furnish—
(a) record of the default recorded with the information utility or such other record or evidence of default as may be specified;
(b) the name of the resolution professional proposed to act as an interim resolution professional; and
(c) any other information as may be specified by the Board.
Questions before the Tribunal for consideration
- Whether the Applicant to be considered as a Financial Creditor for the purpose of the Insolvency process as per Code?
- Whether the ‘Assured Return’ to be paid as per MOU, qualifies to be considered as the Financial Debt and its non-payment is a default for the institution of Insolvency process?
Views of NCLT
The NCLT in the light of aforesaid facts and the provisions of the Code has deliberated on the interpretation of Section 7 of the Code.
Status of the matter
Since the counsel for Applicants has not been able to prove that the aforesaid transaction is a financial transaction in which a debt has been disbursed against the consideration for the time value of money and the applicants being financial creditor is entitled to trigger the insolvency process under section 7 of Code, the application was dismissed.
The NCLT by its judgment has laid down ‘the consideration for time value of money under a Financial Transaction’ as an essential element for determination of a Financial Debt. Reference of the Commentary from, further substantiates, the amount to be paid/received under sale and purchase agreements to be carried out in future does not imparts the nature of Financial debt, it’s the financial/money transaction coupled with the interest or the compensation for time value of money which imparts the character of Financial Debt.
In the instant case, Money was paid in advance for the delivery of possession to be made in future and the “Assured Return” for the amount so advanced was not proved from the material on record as to constitute the interest on advance or the payment in reference to time value of money.
– Sagar Batra (email@example.com)
 For the analysis of the scope of Financial Debt and for consideration of forward sale & purchase transactions under the ambit of Financial Debt, reliance is made on the commentary of the TAXMANN’S Law relating to Insolvency and Bankruptcy Code 2016 by Vinod Kothari and Sikha Bansal.